Mobile-area prosecutors rip sentencing rules calling for little or no prison time

View full sizeCharles Mills ... sentenced to 5 years under old guideline system.

MOBILE, Alabama – Like hundreds of criminal defendants every year, Charles Mills came to court last week and cut a deal to resolve charges stemming from a string of car break-ins.

Mobile County Circuit Judge John Lockett accepted the plea bargain and sentenced Mills to the recommended prison term – five years. Had the plea come a week later, though, the case would have come under new sentencing guidelines that take effect today.

“Starting tomorrow, that would have been an illegally high sentence,” Assistant District Attorney Tim Douthit said Monday.

Written by the Alabama Sentencing Commission to improve consistency and stabilize the state’s overcrowded prison population, the guidelines set out punishment that often is lighter for nonviolent offenders.

Since 2006, the guidelines had been voluntary. Now, judges must consider them for certain drug and property crimes. The guidelines are calculated based on the nature of the offense and the defendant’s criminal record. Defendants will be able to appeal if judges exceed the recommended punishment.

For Mills, a guideline sentence would have resulted in probation or a suspended prison term between 19 and 46 months. Douthit said prosecutors could have asked the judge to impose a harsher penalty by arguing that the defendant’s break-ins at three different parking lots over three summer nights in 2012 constituted multiple victims – an “aggregator” under the guidelines that allows for more severe punishment.

Plea bargains affected

The aggravating factors, Douthit said, give prosecutors some leverage to negotiate deals. But he predicted the guidelines will make it harder. “It definitely ties our hands a little bit,” he said.

As a short-term consequence, Douthit said, it became more difficult to get defendants to plead guilty as the calendar drew closer to Oct. 1. Many hoped to stall until after the guidelines became “presumptive,” he said, meaning that judges must find an aggravating factor before imposing harsher punishment.

Proponents of the guidelines argue that the rules are necessary as a matter of practicality in addressing Alabama’s massively overcrowded prisons.

Walter Honeycutt, a veteran criminal defense lawyer in Mobile, predicted more defendants would opt for “blind pleas” in which they admit guilt without benefit of a sentencing recommendation by prosecutors. He said this already has happened in some courtrooms.

“Some of the judges have been using (the guidelines) very effectively to bypass some of the Draconian plea bargains that DAs have been offering,” he said.

The guidelines have drawn skepticism from some judges and prosecutors, however.

Mobile County Presiding Circuit Judge Charles Graddick called the guidelines “somewhat unrealistic” and questioned the constitutionality of making them presumptive.

“It wouldn’t surprise me at all that some district attorney somewhere (challenged) it by saying that it usurps a constitutional method,” he said. “It seems to me there’s going to be challenges of it. They’re still not realistic in a lot of instances as far as their recommendations are concerned.”

Douthit said a rigid set of sentencing guidelines takes discretion away from judges.

“The reason we elect judges is to judge,” he said. “This involves more punching numbers into a calculator.”

Prosecutors push aggravators

Prosecutors on both sides of Mobile Bay said they plan to seek stiffer punishment whenever an aggravating factor applies.

“This office will do it as often as the law will allow it,” Mobile County Chief Assistant District Attorney Deborah Tillman said.

Baldwin County District Attorney Hallie Dixon said she believes an aggravator will apply much more often than the Sentencing Commission intended. She said her office plans to allege aggravating factors early in cases – including possibly listing them in indictments – so that defendants will admit to them when they plead guilty. That will prevent defendants from pleading guilty to offenses and then fighting the application of factors that could enhance the punishment.

Another possibility, Dixon said, is charging defendants with different offenses not covered by the guidelines.

Honeycutt described how that might happen. A drug defendant, for instance, might be charged with possession of chemicals used in the manufacture of drugs rather than the narcotics offense, itself.

“The DA is going to find a way around them,” he said.

Dixon said she would lobby legislators to change the law in order to make the guidelines purely voluntary again. The law should provide for incarceration in cases where the “average Joe” would expect prison time, she said.

The result of the current rules, Dixon said, is that defendants with multiple prior convictions will end up with no prison time.

Dixon cited a real-life example of a drug defendant recently prosecuted for his third offense involving the sale of narcotics. Under the guidelines, the maximum punishment would be 8½ years in prison, she said.

“Most people would be horrified,” she said. “I think it would appall most people.”

Bennet Wright, the executive director of the Sentencing Commission, said reform was necessity in a state where the prisons are housing almost twice as many inmates as they were designed to hold. He said the system has been stretched to the breaking point. Officials have packed in extra prisoners by redesigning facilities. Authorities closed a canning factory at one institution and converted a gymnasium in another to fit extra beds.

“At some point, the state has a finite number of prison beds,” he said.

But Dixon said she wishes the people had been given the opportunity to choose between sentencing reform and building more prisons. Crafting sentencing policy based on a lack of prison space is bad public policy, she said.

“It’s the tail wagging the dog,” she said.

Honeycutt said he thinks it will take a least a year to determine whether the sentencing regime is working. Others suggested that the impact will be more subtle than some expect because judges have been moving in that direction for years under the voluntary program.

“I could be wrong, but I don’t sense a great change coming,” Gaines McCorquodale, the presiding circuit judge in Washington, Clarke and Choctaw counties. “I would say there’s not that many occasions where we diverge from what the recommended guideline range is.”